This article has been written by Ms. Vijetha Saishree Palle, a 1 year student of Symbiosis Law School, NOIDA
ABSTRACT
The article conveys the integrated cobweb of legal challenges stemming from Surrogacy laws enacted in India. This will provide an in-depth analysis of the existing law’s loopholes and emphasize the significance of a delineated framework to facilitate dispute-free surrogacy laws, implementation of various innovative ideas, and their practical uses and discussed by exploring diverse solutions. The article strives to contribute to the unremitting discussion and discourse on reforming surrogacy laws in India for a more accountable and transparent legal framework that places the welfare of all stakeholders as a paramount subject.
INTRODUCTION
The recent tapestry of surrogacy, also known as assisted reproductive technology, has transformed the realm of family planning. It has offered possible opportunities for individuals or couples facing infertility issues to have a possible chance of growing and establishing a family. The phenomena have raised profound and intricate legal, social, and ethical dilemmas. India is a country that has advanced incredibly in the medical Infrastructure and is known to be a hub for skilled medical professionals, creating India a global center for surrogacy services. However, the heightened increase in surrogacy cases has brought the issue of legal and ethical challenges into the limelight, which has further prompted the Indian government to revise and modify the present legal framework actively.
The enactment of the Surrogacy Regulation Act 2021 has reflected India’s commitment to regulate the overburdened and unorganized surrogacy industry in India. While the act has established provisions and regulatory rules, it is vital to examine and evaluate the possible or potential loopholes that have compromised the effectiveness of this framework. The socio-legal complexities have created a grey area and prompted an in-depth analysis of the legal nuances and ethical dilemmas that have impacted and may impact various stakeholders in the future in surrogacy arrangements. Through this article, we intend to crucially analyze and explore the surrogacy laws, considering surrogacy’s diversity and dynamic nature. We also will explore the evolving legal landscape, current regulations, and loopholes.
UNRAVELING THE LOOPHOLES IN THE PRESENT SURROGACY LAWS IN INDIA
The Surrogacy Regulation Act of 2021 has triggered and sparked a heated debate in India for various reasons. Despite the positive intentions behind the legislature to create surrogacy laws to provide a structured and standardized framework, an intense spotlight has emerged on the prevalent loopholes within this framework or regulations. The loopholes have created ambiguity and ground on which powerful and authoritative people may exploit vulnerable parties in surrogacy arrangements. Hence, discussion regarding the loophole is vital for a better understanding of the present status of the legal framework and the potential solutions for betterment and effective implementation.
Threat of Commercialization of Surrogacy Arrangements
The assisted reproductive technology or the surrogacy act in India has given a green flag only to altruistic surrogacy. This has been a subject of scrutiny and dilemma, as altruistic surrogacy involves no monetary benefits to the surrogate mother other than the expenses incurred during medical and insurance in the span of pregnancy as compared to commercial surrogacy, which includes an exchange of monetary benefits as a reward, which exceeds the amount of the expenses incurred. The positive intention or the idea behind establishing this provision was to prevent the exploitation of vulnerable women for financial gain. These profits have heightened the chances of an unintended aftermath of unregulated commercial surrogacy. Nevertheless, the restriction in the compensation arena has drawn several new channels through which the economic benefits of financial rewards are received. The incapability and non-standardized methods of viewing these informal channels are a significant threat. The lack or absence of a proper mechanism to monitor due transactions throughout pregnancy over the surrogacy arrangements has raised queries regarding the welfare or the well-being of the surrogate mother or the ethical implications of the unregulated sector of commercial surrogacy. The prohibition or ban on commercial surrogacy processes has adversely affected and does not prominently align with the economic realities. The aftermath of such a prohibition has seen surrogacy arrangements or services being provided underground, which is out of the monitoring capacity of the legal framework and leads to a dearth of transparency and accountability. This may lead to the exploitation of vulnerable parties that are primarily inclusive of financially lacking women, who may be unduly influenced to provide consent to enter into unregulated surrogacy contracts. Hence, it is essential to strike an equilibrium or a balance between protecting and prioritizing the interest of the surrogate mothers as well as preventing commercial surrogacy arrangements. It is a complex yet delicate task.
Ambiguities In the Homosexual Parental Rights
The intensifying debate on the possibility of legalizing same-sex marriage in India has further raised queries regarding the legality of a possible right to pursue a surrogacy process for a biological child and whether a homosexual couple can adopt it. There are ambiguities in the eligibility criteria or even the establishment of adequate parenting rights for homosexual couples. The continuous legal discourse has prompted the need for a crucial yet critical analysis for a comprehensive and standardized structure of reforms.
Un-inclusive eligibility criterion
The Surrogacy Act introduced several criteria for the eligibility of prospective couples. A preeminent criterion established under this act is a certificate of essentiality. It has raised ambiguities in defining the concept of essentiality. The overall criteria outlined by the authorities have created a grey area and escalated the potential of unequal treatment.
A recent development in the honorable Delhi High Court has brought complexities and loopholes into the limelight. In a recent discourse, the court questioned the criteria of marital status with surrogacy eligibility. This further challenged section 2(1)(s) of the surrogacy act, under which Indian females who are widows and divorcees between the ages of 35 and 45 are forbidden from undergoing surrogacy. This has led to conceivable queries concerning the unjust and discriminatory treatment against unmarried women and single men and also has pitched an imprecise nature on the eligibility of live-in partners. Several cases have challenged regulations, compelling single women, inclusive of those who are divorcees or widows, to utilize their eggs for surrogacy, which has given weight to several medical advisories that are age-related and hence become inoperable. Significance is given to the right to form a family as one’s personal choice. It has instituted a debate as a precedent of cases like KS Puttuswamy asserting the right to privacy and reproductive choices. It has also emphasized the necessity for a convoluted web of surrogacy laws that respects the welfare of individual rights and addresses social concerns.
In the case of Suchita Srivastava versus Chandigarh Administration, the court Underlined the importance of Article 21, which safeguards personal liberty. Article 21 further extends to the woman’s right to make reproductive choices. Along with various rights, women are entitled to the right to carry the pregnancy for the whole term or to give birth to the child. Several rights, such as privacy, the right to dignity, and the right to bodily integrity, are also fundamental parts of the rights. Women are entitled. These are based on the fundamental principles of individuality, autonomy, and well-being, protecting women’s interests.
Ineffective implementation
It has been witnessed that a standardized or uncompromising mechanism is absent in order to implement or enforce the laws effectively. Proper enforcement questions the necessity for these law’s primary or fundamental establishment. Several studies have concluded that such a grey area arises due to various factors, mainly corruption, growing distrust of the judicial system amongst the people, and insufficient resources. If we take account of the economic landscape, we notice an undiscovered domain of a proper framework that can foster the development or installation of monitoring monetary malpractices. Addressing these deficiencies in various bodies requires a robust and collective commitment from various stakeholders. Some recommended measures include establishing a regulated body that primarily focuses on monitoring the nature of such fraudulent activities pertaining to surrogacy. Without the establishment of robust measures, a comprehensive framework, and practical implementation, the consequences would spread and vibrate throughout society. It is, moreover, hindering several processes.
Cross-border surrogacy
Addressing the forthcoming problem of cross-border surrogacy demands a more comprehensive examination and interpretation of the act to integrate such critical provisions in cases of dispute. India, due to the easy availability of skilled medical practitioners as well as a good market of vulnerable women who are financially unstable and can be influenced by various means, has made India a terrorizing market or a hub of cross-border surrogacy, which is unorganized and not monitored. It is essential to outlay clear guidelines about the dues and responsibilities of all the partakers involved. It is paramount to prioritize the installation of a transparent and protected process. The phenomenon of cross-border surrogacy has been boosted worldwide, with potential parents engaging in surrogacy contracts across international borders. There is a dearth of a regulatory body or an adequately appointed legal framework regarding international surrogacy.
A landmark judgment regarding cross-border surrogacy involves the baby, Manji Yamada. The case concerned a child born in India through surrogacy to a Japanese couple, which created parental conflict. The Honorable Supreme Court of India underlined the absence of specified laws about surrogacy. It directed the National Commission for Protection of Child Rights to underscore the need for legal frameworks and handle surrogacy issues. This case was in the limelight as it preached the volume of proper clarity in the protection of the rights of the children born through surrogacy, known as assisted reproductive technologies.
One more such example is the case of Jan Balaz V. Anand, an Indian surrogate mother, who was hired by a couple from Germany who gave birth to twins. The case highlighted the hardship in obtaining and identifying the citizenship of children born through cross-border surrogacy procedures. In this case, the couple required a valid Indian password for the twins to travel back to Germany. The honorable Supreme Court of India did not issue passports but allowed the children to leave India. The authorities of Germany had permitted the German couple to adopt the children in order to give way to their rights. The case underscores and underlines the intricate web of legal challenges and complexities that arise from the cross-border surrogacy contract.
SURROGACY LAWS REIMAGINED
It is vital to address all the loopholes and grey areas that have emerged in the prevalent surrogacy laws to establish a more effective implementation. Several innovative solutions can be implemented to vitalize the loopholes. Transformative technological techniques are one good way of monitoring the disorganized surrogacy sector. The enactment and adoption of Blockchain Technology can ramp up transparency and security, which is based on proof. The emergence of these forms of technology has given way to proper record management and documentation, inclusive of financial transactions, which would protect vulnerable parties and all stakeholders from fraudulent financial or monetary malpractices.
Regulatory bodies to monitor and ensure adherence to ethical and legal norms and regulations will also promote a conflict-free surrogacy process. The authoritative organization must actively collect reports and databases, maintaining the national surrogacy records. The due record documentation would facilitate a more accountable process, which is also transparent and safeguards the welfare or the interests of the parties. This promotes the implementation of effective surrogacy laws in India.
It is paramount to strengthen and monitor protocols or regulations for informed consent by all the parties involved in the procedure. The increase in cases where consent is obtained in an unlawful and coercive manner has alarmed the nation and sparked an intense debate. It is essential to comprehend the medical, emotional, and legal aftermath of adoption or surrogacy processes. Moreover, informed consent protocol may include various counseling sessions to equip all the parties with a more informative and detailed approach. Sensitization programs must be maintained and implemented as a mandatory process for all parties in the Surrogacy contract. Providing proper information on the emotional and physical arenas of surrogacy and the possible outcomes and consequences of the act may help the parties make a more informed and comprehensive decision to participate in such surrogacy arrangements.
The commercialization of the surrogacy processes is vital. Several researchers and scholars have recommended implementing a cap on compensation, which would promote avoiding the exploitation of vulnerable surrogate mothers. Implement regular audits to prevent commercialization and unorganized channels of commercial surrogacy that are hidden from the world. To monitor surrogacy compliance, clinics must comply with the legal standardized framework. It is also vital for the government to take active participation in controlling the unregistered medical practitioners or quacks Involved in the unorganized channels of surrogacy arrangements.
Cross-border surrogacy can be actively controlled by Fostering robust international and collaborative agreements, which establish a uniform standardized measure of protocols that avoids dispute in cases of international surrogacy contracts and shows consistency in the legal framework.
The involvement in adopting several such diverse solutions can help in the emergence of a more balanced and comprehensive surrogacy law that is multifaceted, enjoys the rights of the well-being of all the parties and stakeholders involved, and ensures that their interests are adequately safeguarded.
CONCLUSION
In conclusion, to sum up everything mentioned in the article so far, the transformation of surrogacy laws is essential for an ethical and legally sound framework that is transparent and safeguards the interest of all the parties involved. Addressing the loopholes and the grey areas in the present framework provides a gateway for adopting several measures such as the Blockchain, sensitization, and regulated bodies. A multifaced comprehensive outlook is vital to ensure and promote the well-being of all the stakeholders by embracing these reforms. India can establish a more forward-looking ideology, looking forward to betterment in surrogacy laws as well as establish a more progressive serve and responsible surrogacy landscape that actively manages to balance the aspiration of growing the family of the intended parents as well as the ethical and legal considerations of the welfare of the surrogate mother.
REFERENCES
Baby Manji Yamada v. Union of India & Anr (2008) 13 SCC 518
Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
Jan Balaz v. Anand municipality and Ors. High court of Gujarat AIR 2010 Gul 21
This article was originally published on Drishti IAS. The link for the same is herein https://www.drishtiias.com/daily-updates/daily-news-analysis/surrogacy-law#:~:text=What%20is%20the%20Surrogacy%20(Regulation,medical%20condition%20necessitating%20this%20option.
This article was originally written by Aman Hingorani published on Bar and Bench. The link for the same is herein. https://www.barandbench.com/columns/the-surrogacy-law-in-india-a-teasing-illusion
This article was originally written by Suryansh published on Khurana and Khurana. The link for the same is herein. https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/
This article was originally published on National Library of Medicine. The link for the same is herein. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/